93 Decision Citation: BVA 93-21066
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 93-05 981 ) DATE
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THE ISSUE
Entitlement to a compensable evaluation for sinusitis.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. S. Kelly, Associate Counse
INTRODUCTION
The veteran had active military service from November 1951 to November
1955.
This matter came before the Board of Veterans' Appeals (hereinafter
Board) on appeal from a March 1992 rating determination of the
Providence, Rhode Island, Regional Office (hereinafter RO). The
notice of disagreement was received in May 1992. The statement of the
case was issued in September 1992. The substantive appeal was
received in October 1992. A personal hearing was held before a
hearing officer at the RO in November 1992. A supplemental statement
of the case was issued in January 1993. The matter was received and
docketed at the Board in March 1993. The matter was then referred to
the veteran's accredited representative, The American Legion, and that
organization presented additional written argument to the Board in
August 1993.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran essentially asserts that his sinusitis is productive of a
greater degree of impairment than his current disability rating
reflects. He contends that a white-colored crusty pus is inside his
nasal passages and that his sinusitis causes headaches. It is
maintained that the evidence of record, including the veteran's
testimony and private treatment records, warrants the assignment of an
increased evaluation.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), has reviewed and considered all of the evidence and
material of record in the veteran's claims file. The Board has
determined that only those items listed in the "Certified List"
attached to this decision and incorporated by reference herein are
relevant evidence in the consideration of the veteran's claim. Based
on its review of the relevant evidence in the consideration of this
matter, and for the following reasons and bases, it is the decision of
the Board that the record supports a 10 percent evaluation for
sinusitis.
It is further the decision of the Board that the preponderance of the
evidence is against the claim for an evaluation in excess of 10
percent for sinusitis.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable disposition of
the case has been obtained by the RO.
2. The medical evidence throughout 1992 reveals treatment for chronic
sinusitis.
3. The veteran, at his November 1992 personal hearing, reported
crusty white pus in his nasal passages and headaches.
4. Sinusitis is productive of not more than moderate impairment.
CONCLUSIONS OF LAW
1. With reasonable doubt resolved in favor of the veteran, a 10
percent disability rating for sinusitis is warranted. 38 U.S.C.A. §§
1155, 5107(a) (West 1991); 38 C.F.R. § 4.97, Code 6513 (1993).
2. The criteria for an evaluation in excess of 10 percent for
sinusitis are not met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38
C.F.R. §§ 3.321(b)(1), 4.7, 4.97, Code 6513 (1993).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran has submitted a well-grounded claim within the meaning of
38 U.S.C.A. § 5107(a) (West 1991). That is, we find that he has
presented a claim which is plausible. We are also satisfied that all
relevant facts have been properly developed and that no further
assistance is required to comply with the duty to assist him as
mandated by 38 U.S.C.A. § 5107(a) (West 1991).
Disability evaluations are determined by the application of a schedule
of ratings which is based on average impairment of earning capacity.
38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1993).
The veteran is service connected for sinusitis, currently assigned a
noncompensable disability rating. A noncompensable disability rating
for sinusitis is warranted when there are X-ray manifestations only,
and symptoms are mild or occasional. A 10 percent disability
evaluation is warranted for moderate sinusitis, with discharge or
crusting or scabbing, infrequent headaches. A 30 percent disability
evaluation is warranted for severe chronic maxillary sinusitis, with
frequently incapacitating recurrences, severe and frequent headaches,
purulent discharge or crusting reflecting purulence. 38 C.F.R. §
4.97, Code 6513 (1993).
A review of the record indicates that the veteran was treated during
service for sinusitis complaints, and he underwent operative
intervention, which included drainage of the maxillary sinus area.
After his separation from service, the veteran's private physician
treated him for a complaint of maxillary tenderness.
An April 1960 Department of Veterans Affairs (VA) examination reported
normal findings after examining the external nose, mouth and fauces.
Examination of the right naris found red mucosa and purulent
discharge, while examination of the left naris found red mucosa and a
polyp. The sinuses were found to transilluminate well. The veteran
was diagnosed as having chronic sinusitis. X-ray examinations taken
in April 1960 revealed normally developed and pneumatized paranasal
sinuses. There were no signs of infection or regional bony changes.
A May 1960 VA examination reported the veteran's external nose, mouth
and fauces within normal limits. Red mucosa, slight discharge and a
small polyp were noted in the right naris, while red mucosa and a
large polyp were reported in the left naris. The sinuses were noted
to transilluminate well and the pharynx was within normal limits. An
examination performed on behalf of the VA in May 1960, reported the
nasal mucosa on the left side to be inflamed and slightly edematous
but found no evidence of purulent exudate. The sinuses were found to
transilluminate and the septum deviated toward the left. It was the
examiner's impression that the veteran had a deviation of the nasal
septum with acute rhinitis. As a result of the VA examinations, the
veteran was service connected for mild sinusitis, and granted a
noncompensable disability evaluation effective February 1960.
A November 1989 VA examination found no sinus tenderness. Findings
were consistent with possible allergic rhinitis. No discharge,
crusting or scabbing of the nasal passages was reported. At the time
of the examination, the veteran reported recurrent headaches with
occasional dizziness and disorientation which lasted for about an
hour.
An August 1990 VA outpatient treatment record reported the veteran's
paranasal sinuses within normal limits. An October 1991 outpatient
treatment record noted fullness in the left maxillary sinus; the
diagnosis was sinusitis. During February 1992 VA examination, the
veteran complained of nasal obstruction, the frequent need to blow his
nose, post-nasal drip and headaches. Physical examination showed
multiple small polyps in the left nasal passage and a large polyp
obstruction in the right nasal passage. The veteran's external nose
and nasal vestibule were within normal limits and his right and left
nasal cavities revealed multiple nasal polyps. The floor of the nose,
the inferior meatus, the middle turbinate and the inferior turbinates,
were all within normal limits. The right middle meatus was well
filled with a large polyp. A deviated septum was also reported. The
sphenoethmoidal recess, olfactory area, and superior turbinates were
noted to be clean. The paranasal sinuses were clear, and the examiner
reported that the January 1992 sinus X-rays were within normal limits.
A diagnosis of allergic rhinitis with bilateral polyposis, along with
a history of chronic maxillary sinusitis was rendered; however, no
sinusitis was present at the time of the examination.
March 1992 private X-ray examinations of the sinus noted that the left
maxillary sinus demonstrated haziness at its lower half with a
suggestion of air/fluid level indicating acute sinusitis. There was
no evidence of destructive bony lesion or tumor mass, and the other
paranasal sinuses appeared normal. A mild left-sided nasoseptal
deviation was reported. It was the examiner's impression that the
veteran had mild acute left maxillary sinusitis and mild left-sided
deviation.
An April 1992 coronal computerized tomography (CT) sinus X-ray,
revealed normally developed paranasal sinuses. The left maxillary
sinus showed its lower half opacified with the presence of air/fluid
level, due to the presence of sinusitis. Mild mucosal lining
thickening involved both ethmoid sinuses and the inferior aspect of
the left side of the frontal sinus. There was no evidence of
destructive bony lesion or tumor mass, and the other paranasal sinuses
appeared normal. Left-sided nasoseptal deviation was also present.
It was the examiner's impression that mild sinusitis involving both
ethmoid sinuses in the left side of the frontal sinus was present.
The left maxillary sinus was opacified at its lower half with
air/fluid level indicative of acute sinusitis. It was also the
examiner's impression that mild left-sided nasoseptal deviation was
present.
A bilateral endoscopic ethmoidectomy, and a bilateral middle meatal
antrostomy as well as a septoplasty, were performed by the veteran's
private physician, James J. Murdocco, M.D., in June 1992. Following
the performance of the operation a diagnosis of chronic pansinusitis
with a deviated nasal septum was rendered. The veteran was then seen
at the VA outpatient treatment center in October 1992 at which time no
further polyps were seen and a diagnosis of chronic old inactive
sinusitis was rendered.
At his personal hearing in November 1992, the veteran reported having
extreme headaches on occasion and a dull ache at other times, which
expanded across the left to the right eye and along side of his eye as
well as across the cheek bones and above his dentures. Transcript
(hereinafter, T.) pages 9 and 10. He further reported having a
crusted white pus inside his nasal passages. (T. 3).
With regard to the increased rating claim, the February 1992 VA
examination reported clear paranasal sinuses and indicated that
associated sinus X-rays were within normal limits. Nevertheless,
private records subsequent to the VA examination revealed continued
treatment for chronic pansinusitis. March and April 1992 private X-
ray examinations showed mild acute left maxillary sinusitis and mild
sinusitis involving both ethmoid sinuses and the left side of the
frontal sinus, respectively. Following the June 1992 operations, the
diagnosis of chronic pansinusitis was continued. While the October
1992 VA outpatient treatment record indicated chronic inactive
sinusitis, the veteran, at his personal hearing, reported crusty pus
and headaches at the time of the hearing.
Thus, a review of the overall record shows continuing problems with
chronic symptoms of sinusitis, with mild abnormalities shown on
objective testing. The veteran has testified, and the treatment
records reflect, ongoing complaints, including discharge and
infrequent headaches. Given the foregoing, the evidence is in
equipoise as to the degree of severity of the sinusitis. With
reasonable doubt resolved in favor of the veteran, the criteria for a
10 percent evaluation for moderate chronic maxillary sinusitis under
38 C.F.R. § 4.97, Code 6513 (1993) have been met. The criteria for an
evaluation greater than 10 percent under Code 6513 have not been met,
however, as frequent incapacitating recurrences or purulent discharge
or crusting reflecting purulence has not been demonstrated. Although
the veteran has reported having severe headaches on occasion, they
have not been reported as frequent in nature, nor do the treatment
records document severe sinusitis. As such, an evaluation in excess
of 10 percent is not warranted.
Consideration has also been given to the potential application of the
various provisions of 38 C.F.R. Parts 3 and 4 as raised by the
veteran, and as mandated by Schafrath v. Derwinski, 1 Vet.App. 589
(1991). In particular, the evidence discussed above does not suggest
that the veteran's sinusitis presents such an exceptional or unusual
disability picture as to render impractical the application of the
regular schedular standards so as to warrant the assignment of an
extraschedular evaluation under 38 C.F.R.
§ 3.321(b)(1) (1993).
ORDER
A 10 percent evaluation for sinusitis is granted, subject to the laws
and regulations governing the payment of monetary benefits.
An evaluation in excess of 10 percent for chronic maxillary sinusitis
is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
M. SABULSKY
J. U. JOHNSON
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans'
Appeals Section, upon direction of the Chairman of the Board, to
proceed with the transaction of business without awaiting assignment
of an additional Member to the Section when the Section is composed of
fewer than three Members due to absence of a Member, vacancy on the
Board or inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section proceed with
the transaction of business, including the issuance of decisions,
without awaiting the assignment of a third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a
decision of the Board of Veterans' Appeals granting less than the
complete benefit, or benefits, sought on appeal is appealable to the
United States Court of Veterans Appeals within 120 days from the date
of mailing of notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision which
you have received is your notice of the action taken on your appeal by
the Board of Veterans' Appeals.